Citation Nr: 0024492
Decision Date: 09/14/00 Archive Date: 09/21/00
DOCKET NO. 99-09 241 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for high blood
pressure/lung condition.
2. Entitlement to service connection for amoebic dysentery.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Counsel
INTRODUCTION
The veteran served on active duty from September 1940 to June
1962.
This matter comes before the Board of Veterans' Appeals (the
Board) from a February 1999 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
which the RO denied service connection for high blood
pressure and a lung condition and amoebic dysentery.
The record reflects that the veteran initially filed claims
of entitlement to service connection for hypertension and
amoebic dysentery (in addition to other claims) in October
1969 and that these claims were denied by the RO in February
1970 due to a failure to report for a VA examination. In an
statement submitted by the veteran in April 1970, the veteran
indicated that he did not refuse to undergo a physical
examination, but had been unable to attend he examination as
he was overseas on business. In a November 1970 statement,
the veteran indicated that he was due to return to the United
States in April 1971 and requested that the case be held in
abeyance until then.
No action was taken in this case by the RO or the veteran
from April 1971 until July 1998, when the veteran filed
claims of entitlement to service connection for several
conditions, including those which are the subject of this
appeal. In a February 1999 rating action, the RO pointed out
the fact that the veteran had originally raised several
claims, including claims of entitlement to service connection
for hypertension and amoebic dysentery in October 1969. The
RO determined that the February 1970 decision in which the
veteran's service connection claims were administratively
disallowed was in error in light of the veteran's 1970 and
1971 correspondence. Accordingly, all of the claims raised
by the veteran in his original October 1969 application were
adjudicated by the RO in the February 1999 rating action.
Only the claims of entitlement to service connection for high
blood pressure/lung condition and for amoebic dysentery were
appealed.
FINDINGS OF FACT
1. There is no currently diagnosed lung condition.
2. There is no medical evidence supporting a current
diagnosis of hypertension; hypertension was not diagnosed in
service or within a year following service and there is no
evidence of chronicity of hypertension since service; the
record contains no competent medical evidence of a nexus
between hypertension and service.
3. There is no current diagnosis of amoebic dysentery of
record, nor evidence of symptoms primarily manifested by
amoebic dysentery; the record contains no competent medical
evidence establishing chronicity of bacillary dysentery which
was treated in 1947 or establishing a nexus between that
condition and any currently claimed residuals.
CONCLUSIONS OF LAW
1. The veteran has not presented evidence of a well-grounded
claim for entitlement to service connection for hypertension
or a lung condition. 38 U.S.C.A. § 5107(a) (West 1991).
2. The veteran has not presented evidence of a well-grounded
claim for entitlement to service connection for amoebic
dysentery. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking entitlement to service connection
hypertension and for amoebic dysentery. In the interest of
clarity, the law and VA regulations which are common to these
two issues will be initially set forth. Then the issues will
be discussed separately.
Relevant Law and Regulations
Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131. For certain chronic
disorders, including hypertension, service connection may be
granted if manifest to a compensable degree within one year
following separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309
(1999).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1999).
Well Grounded Claims
Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), a person who
submits a claim for benefits under a law administered by the
Secretary shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. The United
States Court of Appeals for Veterans Claims (Court) has held
that a well-grounded claim is "a plausible claim, one which
is meritorious on its own or capable of substantiation. Such
a claim need not be conclusive but only possible to satisfy
the initial burden of § [5107(a)]." Murphy v. Derwinski, 1
Vet. App. 78, 81 (1990). The Court has also held that
although a claim need not be conclusive, the statute provides
that it must be accompanied by evidence that justifies a
"belief by a fair and impartial individual" that the claim is
plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992).
The Court has held that "where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is 'plausible'
or 'possible' is required." Grottveit v. Brown, 5 Vet. App.
91, 93 (1993) (citing Murphy, at 81). The Court has also
held that "Congress specifically limits entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. In the absence of
proof of a present disability there can be no valid claim."
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also
Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Lay
assertions of medical causation cannot constitute evidence to
render a claim well grounded under 38 U.S.C.A. § 5107(a); if
no cognizable evidence is submitted to support a claim, the
claim cannot be well grounded. See Grottveit, 5 Vet. App. at
93 (Court held that lay assertions of medical causation
cannot constitute evidence to render a claim well grounded);
see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992)
(Court held that a witness must be competent in order for his
statements or testimony to be probative as to the facts under
consideration).
In Caluza v. Brown, 7 Vet. App. 498, 506 (1995) the Court
reaffirmed these holdings, stating in order for a claim to be
well grounded there must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the inservice injury or
disease and the current disability (medical evidence).
1. Entitlement to service connection for high blood
pressure/lung condition.
Factual Background
The veteran's service medical records have been carefully
reviewed.
Upon physical examination for flying conducted in December
1942, blood pressure was 126/52 and clinical evaluation of
the respiratory system was normal. A report of physical
examination conducted in September 1945 revealed that the
veteran's blood pressure was 134/74. An evaluation of the
lungs was normal and a chest X-ray film was negative. A
blood pressure reading of 124/80 was documented in a June
1947 examination report. Upon physical examination conducted
in October 1948, the veteran's blood pressure reading was
130/80. Upon examination conducted in December 1949, a blood
pressure reading of 120/84 was recorded. A Grade II systolic
murmur at the apex of the veteran's heart was noted. In a
May 1953 medical examination report, clinical evaluation of
the lungs and chest, heart and vascular system was normal. A
blood pressure reading of 110/70 was recorded.
The service medical records further show that in November
1954 and May 1955 medical examination report, clinical
evaluation of the lungs and chest, heart and vascular system
were normal. Blood pressure readings of 120/70 and 110/70
were respectively recorded. Upon periodic examination
conducted in September 1960, clinical evaluation of the lungs
and chest, heart and vascular system were normal. A blood
pressure reading of 138/88 was recorded.
In November 1969, the veteran filed a claim of entitlement to
service connection for high blood pressure, indicating that
this condition had its onset in the spring of 1960. As was
discussed in the Introduction above, the claim was denied by
the RO in February 1970 due to a failure to report for a VA
examination. In July 1998, the veteran filed a claim of
entitlement to service connection for high blood pressure,
indicating that this condition had its onset in 1958 or 1959.
In Item 21 of the application form, VA Form 21-566, the
veteran did not list the names of any physicians or other
health care providers who had knowledge of his claimed
disabilities.
A VA examination was conducted in October 1998. The examiner
indicated that no medical records were available. The
history provided by the veteran himself indicated that
hypertension had been diagnosed in 1958 and that the veteran
was on an oral medication regimen. Physical examination
revealed blood pressure of 140/79. An examination of the
chest showed that the lungs were clear to auscultation
bilaterally. A diagnosis of hypertension was made.
By rating action of February 1999, the RO denied the claim of
entitlement to service connection for high blood pressure/a
lung condition.
In a statement submitted by the veteran in March 1999, he
indicated that he had received treatment for hypertension
between 1958 and 1960 and recalled that at times, he went to
a clinic several times a day for blood pressure readings and
was placed on medication at that time. He indicated that he
was still taking medication.
In a second statement provided in March 1999, the veteran
reported that after retiring from the service in 1962, he
received treatment for hypertension at an Air Force base
until 1966. In May 1999, the RO contacted two Air Force base
medical centers identified by the veteran as sources of
treatment and requested medical records. In correspondence
from the Department of the Air Force dated in May 1999, the
RO was advised that no records pertaining to the veteran were
on file.
Analysis
Upon review of the evidence, the Board has determined that
the veteran has not presented a well grounded claim of
entitlement to service connection for hypertension or for a
lung condition.
With respect to the claim for a lung condition, there is no
currently diagnosed lung condition. As noted above, one
element of a well-grounded claim is a presently-existing
disability stemming from the disease or injury alleged to
have begun in or been aggravated by service. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141 (1992). Accordingly, absent
evidence of a current lung disability, the claim for that
disability is not well grounded. The Board further notes
that there is also no evidence of any lung problems during
service and there is no medical nexus evidence pertaining to
the claimed lung condition. Accordingly, all three prongs of
the Caluza test have not been met with respect to the
veteran's claimed lung condition.
With respect to the hypertension claim, although there is of
record medical evidence of a current diagnosis of
hypertension, made upon VA examination conducted in October
1998, this appears to be based entirely on the statements
made by the veteran to the examiner. Although the veteran
told the examiner that he had been diagnosed with
hypertension in 1958, during service, and that he currently
was on an oral medication regimen, neither fact is supported
by the evidence of record. The veteran's service medical
records do not indicate any diagnosis of hypertension and the
veteran has failed to provide any medical evidence of current
treatment for hypertension. Significantly, the October 1998
VA examination report included a blood pressure reading of
140/79. Accordingly, the Board discounts the diagnosis of
hypertension, which appears to be based exclusively on the
veteran's oft-repeated contentions. See Swann v. Brown, 5
Vet. App. 229, 233 (1993) [ a diagnosis "can be no better
than the facts alleged by the appellant"].
The Board further finds that the veteran has not met either
the second or third elements of Caluza because he has
submitted no evidence establishing the incurrence or
aggravation of hypertension in service and no competent
medical evidence of a nexus between any currently diagnosed
hypertension and his service.
In this regard, the evidence includes no diagnosis of
hypertension made at any time during service, upon
separation, within a year following the veteran's separation
from service. This case is in many ways similar to Rabideau
v. Derwinski, 2 Vet. App. 141 (1992), in which the Board's
decision denying a veteran's claim of entitlement to service
connection for hypertension was affirmed by the United States
Court of Appeals for Veterans Claims. In fact, unlike in
this case, the veteran in Rabideau did have some elevated
blood pressure readings in service. See Rabideau, 2 Vet.
App. at 142-3. The Court stated: "with regard to
hypertension, under the ratings schedule, current disability
must be shown to at least the minimum compensable degree
(10%)". Id. at 143. The veteran's claim was denied as not
well grounded based on a lack of disability. So it is in
this case.
As for medical nexus evidence, the veteran himself has
contended that an etiological link exists between service and
his claimed hypertension. However, lay persons are not
considered competent to offer medical opinions regarding
causation or diagnosis, and therefore that evidence does not
establish that the claim is plausible. Grottveit v. Brown, 5
Vet. App 91, 93 (1993). Thus, the veteran's opinion as to
the etiology of his alleged hypertension is not sufficient to
well-ground the claim.
Therefore, because the veteran has met none of the elements
of Caluza, the Board is of the opinion that he has failed to
present evidence of a well-grounded claim of entitlement to
service connection for hypertension. The benefit sought on
appeal is denied.
2. Entitlement to service connection for amoebic dysentery.
Factual Background
In December 1947, the veteran experienced symptoms of
diarrhea. The evidence reflects that he was hospitalized
from January to March 1948. The admitting diagnosis was
diarrhea, cause undetermined; that was replaced by a
diagnosis of subacute colitis of undetermined cause.
Upon examination conducted in December 1949, clinical
evaluation of the abdomen and viscera and the anus and rectum
were normal. The report noted that the veteran had been
hospitalized for 3 months in 1947 due to bacillary dysentery,
with a normal recovery, no recurrence and no complications.
In a May 1953 medical examination report, clinical evaluation
of the abdomen and viscera and anus and rectum was normal.
November 1954 and May 1955 medical examination reports
reflected that clinical evaluation of the evaluations of the
abdomen and viscera and anus and rectum was normal were
normal. Upon periodic examination conducted in September
1960, clinical evaluation of the abdomen and viscera was
normal and it was specifically noted that a rectal and
prostate examination was within normal limits.
In November 1969, the veteran filed a claim of entitlement to
service connection for amoebic dysentery, indicating that
this condition was present from 1946 to 1953 The claim was
denied by the RO in February 1970 due to a failure to report
for a VA examination.
A VA examination was conducted in October 1998. As noted
above, no medical records were available to the examiner.
According to the veteran, in 1953 after continued symptoms of
diarrhea a diagnosis of "anemic dysentery" was made.
On physical examination, the veteran denied having any
residual symptoms and no digestive or bowel/stool complaints.
An examination of the abdomen revealed that it was non-tender
and non-distended with no masses and no bruits. A
genital/rectal examination revealed no evidence of loss of
sphincter control, and no evidence of fecal leakage or
involuntary bowel movements. There were no signs of anemia.
No pertinent diagnosis was made.
By rating action of February 1999, the RO denied the claim of
entitlement to service connection for bacillary, amoebic
dysentery.
Analysis
The Board has determined that the veteran has not presented a
well grounded claim of entitlement to service connection for
amoebic dysentery.
In this case, the first element of Caluza, a diagnosis of the
currently claimed condition, amobeic dysentery, has not been
met. As noted above, one element of a well-grounded claim is
a presently-existing disability stemming from the disease or
injury alleged to have begun in or been aggravated by
service. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In
this case, upon VA examination conducted in October 1998, no
pertinent diagnosis was made. In fact, at that time, the
veteran denied having any digestive or bowel/stool complaints
and no symptomatology was found pursuant to examinations of
the abdomen and genital/rectal systems. Absent evidence of a
current disability, the claim is not well grounded.
Moreover, the service medical records are entirely negative
for a diagnosis of amoebic dysentery. Although there was a
reference in a 1949 physical examination report to 3 months'
hospitalization for bacillary dysentery, the hospitalization
in question was in fact for subacute colitis. In fact, the
record does not show that amoebic dysentery has ever been
diagnosed.
There is also no medical nexus evidence of record.
In summary, with respect to this claim none of the elements
enumerated in the Caluza decision have been met. As has
already been established, there is no diagnosis of the
currently claimed disability, amoebic dysentery. The Board
further finds that the neither the second or third elements
of Caluza have been met because there is no evidence of the
incurrence or aggravation of the claimed condition in service
and there is no medical evidence of a nexus between this
claimed condition and service.
The Court has held that "[i]n the absence of competent
medical evidence of a current disability and a causal link to
service or evidence of chronicity or continuity of
symptomatology, a claim is not well grounded." Chelte v.
Brown, 10 Vet. App. 268 (1997). Therefore, because the
veteran has met neither the first, second or third elements
of Caluza, the Board finds that he has failed to present
evidence of a well-grounded claim of entitlement to service
connection for amoebic dysentery. The benefit sought on
appeal is therefore denied.
Additional Matters
Because the aforementioned claims are not well grounded, the
VA is under no duty to further assist the veteran in
developing facts pertinent to those claims. 38 U.S.C.A. §
5107(a). VA's obligation to assist depends upon the
particular facts of the case and the extent to which VA has
advised the appellant of the evidence necessary to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet. App. 69, 78 (1995). In this case, the VA is not on
notice of any known and existing evidence which would make
the service connection claim plausible, and thereby, well-
grounded. The Board's decision serves to inform the veteran
of the kind of evidence which would be necessary to make his
claims well grounded.
ORDER
A well-grounded claim not having been presented, entitlement
to service connection for hypertension/ lung condition is
denied.
A well-grounded claim not having been presented, entitlement
to service connection for amoebic dysentery is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals